Academic journal article Harvard Law Review

International Delegation as Ordinary Delegation

Academic journal article Harvard Law Review

International Delegation as Ordinary Delegation

Article excerpt

Increasing global trade, decreasing transportation costs, boundary-defying pollutants, and a host of other phenomena have made the world a much more international place. American legal academics have taken note, likening the expansion of global legal institutions to the New Deal and the rise of the federal administrative state.1 As with the rise of the administrative state, U.S. participation in these international institutions--in particular U.S. delegation of federal power to them--raises important constitutional questions that speak to the heart of American democracy.

The recent proliferation of international organizations2 and, arguably, of U.S. delegations to those organizations3 has brought these constitutional questions to the fore. Academics have noted Fifth, Sixth, and Seventh Amendment concerns with U.S. participation in the International Criminal Court. (4) They have discussed Article III concerns regarding Canada-United States Free-Trade Agreement (5) binational panels, which review administrative trade decisions. (6) They have argued that the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (7) contravenes the Appointments Clause. (8) And they have debated whether these international arrangements violate some version of the nondelegation doctrine. (9) This Note takes aim only at the last question of nondelegation.

The stakes on both sides of the equation are high. On the one hand, failure to permit international delegations (10) could leave the United States (and potentially the world) helpless to address pressing global problems. For example, in the 1970s, scientists began paying attention to the potentially devastating consequences of the depletion of ozone in the Earth's stratosphere. (11) In a relatively impressive feat of global cooperation, the United States along with over 190 other countries (12) responded by adopting the Montreal Protocol on Substances that Deplete the Ozone Layer. (13) The Montreal Protocol included a straightforward phaseout of certain ozone-depleting substances, (14) but because the parties could not agree ex ante on how best to phase out methyl bromide, (15) an important pesticide for strawberries and tomatoes, (16) the protocol delegated to the parties collectively the power to create exemptions for its phaseout. (17)

The Montreal Protocol illustrates both the ways that international delegations may be necessary and the potential consequences of limiting those delegations. The protocol addressed a global problem that required collective action to solve, but the parties could not make an agreement without delegation. In that sense, the Montreal Protocol is an example of the importance of international delegations to resolving global collective action problems. (18) But even when collective action problems are easier to solve, delegation may be necessary to enforce or interpret any agreement. (19)

On the other hand, many commentators argue that international delegations present a threat to the democracy of the United States. (20) International delegations involve a transfer of power from the federal government to international bodies. Because the American people exercise limited control over international bodies, international delegations permit decisions limiting the freedom of U.S. citizens to be made by entities only minimally accountable to them. Such delegations thus shift power away from the people.

More importantly, the constitutionality of international delegations is unsettled. In Natural Resources Defense Council v. Environmental Protection Agency, (21) a 2006 case involving the methyl bromide exemption to the Montreal Protocol--one of the only cases to address the constitutionality of international delegations (22)--the D.C. Circuit refused to give effect to the decision of the delegated body establishing the terms of the exemption for the United States. …

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